Firm Sues Over Gravel Mine Decision

By Andrew Gorosko

A Monroe construction company has sued the Zoning Board of Appeals (ZBA) in seeking to overturn its decision which prevents the firm from continuing to mine sand and gravel at its 12 Cold Spring Road property in Botsford.

In a lawsuit filed May 25 in Danbury Superior Court, Nagy Brothers Construction Company, Inc., of 550 Main Street, Monroe, states that it and its immediate predecessor have continually conducted a sand and gravel mining operation at the property since 1955. Mining on the property began before the inception of the zoning regulations and the sand and gravel mining regulations, thus constituting a pre-existing, non-conforming use of the property, the suit adds.

For many years before June 1, 1999, Nagy Brothers annually applied to the town and received a gravel mining permit, it adds. On May 25, 1999, the firm filed a permit application with the town for gravel mining for the year beginning June 1, 1999, it states.

According to the lawsuit, the Planning and Zoning Commission (P&Z) on August 5, 1999, denied the permit application, not having provided the applicant with an opportunity to appear before it and be heard before the application was denied, and further did not provide the firm with notice of the denial.

On September 21, 1999, the town advised the firm that it should apply to the ZBA for a review of its mining permit application, the suit states. In light of that, the firm on September 28, 1999, sought a zoning variance in connection with the mining permit application, it adds. The ZBA denied that variance application December 17, 1999, it states.

On December 14, 1999, Zoning Enforcement Officer Gary Frenette issued a cease-and-desist order to the firm ordering it to stop mining operations at the property, the suit states.

  The firm appealed that order to the ZBA on January 13. A hearing on the appeal was held on April 13. The ZBA then denied the appeal, stating that Nagy Brothers “did not have a valid mining permit at the time the cease-and-desist order was issued,” according to the court papers.

 The firm alleges that the ZBA acted illegally, arbitrarily, and in abuse of its discretion by denying its ZBA appeal because the mining operation is a pre-existing, non-conforming use which does not require a mining permit.

The lawsuit adds that Mr Frenette acted prematurely in issuing the cease-and desist order to the firm in December 1999.

“The procedure followed by the [P&Z] in denying [Nagy Brothers] a mining permit was so fundamentally flawed in its failure to provide [Nagy Brothers] with an opportunity to appear and be heard with respect to its application for a permit, that the denial of such permit cannot properly form the basis for the zoning enforcement officers’ decision to issue a cease and desist order,” the court papers state.

Second Count

In the second count of the lawsuit, Nagy Brothers states that on March 13 it filed a ZBA application through which it sought to have the ZBA establish that the firm had not abandoned its pre-existing, non-conforming gravel mining use of its property. In that application, the company sought to receive a waiver to allow it to refile an application for the year starting June 1, 1999. The ZBA denied that application.

The firm alleges that in denying that application, the ZBA ignored evidence that the firm had not abandoned or voluntarily discontinued its non-conforming gravel mining use of the property and that the ZBA did not treat the company in the same manner that it had treated similar applicants with similar requests for similar waivers.

Through the lawsuit, Nagy Brothers seeks to have the court overturn the ZBA decisions concerning its gravel mining operation.

Of the pending lawsuit, Mr Frenette said Wednesday, “I think that we [town] have a strong case and Nagy apparently thinks he’s above the law, which he isn’t.”

Mr Frenette said he checks the Cold Spring Road gravel pit daily to ensure that mining does not resume there.

 The town is scheduled to respond in court June 20 to the allegations made in the lawsuit.